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Intermediary : a bridge between the Dispute Resolution Commission and N.C.'s certified mediators

Intermediary : a bridge between the Dispute Resolution Commission and N.C.'s certified mediators

Commission Members
Judge W. David Lee, Chair
Superior Court Judges Office
P.O. Drawer 829
Monroe, NC 28111-0829
Jacqueline R. Clare, Esq.
1011 Vance Street
Raleigh, NC 27608
Jessie M. Conley, Esq.
Pressly Thomas & Conley, P.A.
224 Harrill Street
Statesville, NC 28677
Judge Martha H. Curran
Clerk of Superior Court
P.O. Box 37971
Charlotte, NC 28237-7971
N. Victor Farah
The Jernigan Law Firm
P.O. Box 847
Raleigh, NC 27602-0847
Edward C. Hay, Jr.
Pitts, Hay & Hugenschmidt, P.A.
137 Biltmore Avenue
Asheville, NC 28802
Wayne Huckel
K & L Gates, LLP
Hearst Tower, 47th Floor, Ste. 4700
214 North Tryon Street
Charlotte, NC 28202
N. Lawrence Hudspeth, III, Esq.
Law Offices Lana S. Warlick
P.O. Box 1393
Jacksonville, NC 28541-1393
Judge Barbara Jackson
N.C. Court of Appeals
P.O. Box 888
Raleigh, NC 27602-0888
The Intermediary
Volume 8, Issue 1
April 2009
A Bridge between the Dispute Resolution Commission
and North Carolina’s Certified Mediators
Page 1
From the Chair
By
Judge W. David Lee
With our current economic environment, I have a renewed apprecia-tion
for mediation and our various programs’ roles in our court system. When
resources are scarce, whether due to job losses or pay cuts, many citizens have
difficulty affording the legal assistance they may need. Even if they have the
money to file a lawsuit, protracted litigation and the cost of a trial may make
their situation problematic. In effect, their access to our courts may be lim-ited.
When money is scarce, our courts often “feel the pinch”, as well. On
March 17th, my colleague, and fellow Commission member, Judge Joe
Turner, sent an e-mail to lawyers who practice in the District Court in High
Point and Greensboro advising them that the District did not have enough
judges to handle its current caseload. The District had been using Emergency
Judges to plug the holes, but the Administrative Office of the Courts, Judge
Turner advised them, had told him that money was no longer available for
Emergency Judges. In order to cope, Judge Turner announced that the District
would have to close sessions of court from time-to-time. Just like our citizens
who have been hard hit, our courts must find ways to adapt to our current en-vironment.
While our citizens grapple with these economic and related issues, I
am convinced that our situation would be worse absent the mediation process.
Since their inception, our mediated settlement conference programs have con-sistently
led to the early settlement of thousands of cases. Just as importantly,
they have allowed judges to better allocate their time, turning their attention to
civil cases that did not settle in mediation or to criminal matters. Beyond our
Superior Court’s Mediated Settlement Conference Program and our District
Court’s Family Financial Settlement Program, Dispute Settlement Centers
operating across our State are successfully mediating thousands of juvenile
cases and misdemeanor criminal matters, further reducing the burden on our
courts. In addition, those same Centers serve to resolve a wide array of dis-putes
voluntarily brought to them by citizens hopeful of resolving their con-flicts
short of litigation and court involvement.
(Continued on Page 2)
J. Anderson Little, Esq.
P.O. Box 16205
Chapel Hill, NC 27513
Terri C. Masiello
Piedmont Mediation Center
P.O. Box 1574
Statesville, NC 28687
Judge Ann E. McKown
Durham County Courthouse
6th Floor, Suite 656
201 E. Main Street
Durham, NC 27701
Judge Michael R. Morgan
Wake County Courthouse
P.O. Box 351
Raleigh, NC 27602
Professor Mark Morris
523 Elm Street
Raleigh, NC 27604
Gary Tash
Tash and Kurtz, PLLC
3305 Healy Drive
Winston-Salem, NC 27103-1406
Judge Joseph E. Turner
Guilford County Courthouse
P.O. Box 3008
Greensboro, NC 27402-3008
Commission Staff
Leslie Ratliff, Executive Director
Sharon Corey-Laue, Admin. Asst.
Maureen M. Robinson, Admin. Asst.
P.O. Box 2448
Raleigh, NC 27602-2448
Tele. (919) 890-1415
Fax. (919) 890-1935
Web Address: www.ncdrc.org
In This Issue
From the Chair --------------------- page 1
Upcoming Meeting ---------------- page 2
The Economy & Other Issues --- page 3
Medicaid Mediation -------------- page 4
New Advisory Opinion ---------- page 6
Foreclosure Mediation ------------ page 7
CME Opportunities --------------- page 8
Commission’s Web-Site ---------- page 9
Revamped Renewal Process ---- page 11
Blogger? ---------------------------- page 11
New Chair and Members --------- page 13
Members Complete Terms ------- page 13
New Faces--------------------------- page 14
Pro-bono Volunteers--------------- page 15
The Commission invites its readers to comment on
any articles or information presented in The Inter-mediary
or to write articles for inclusion. Send
your thoughts to the editor, Leslie Ratliff, at les-lie.
ratliff@nccourts.org. We look forward to hearing
from you!
Page 2
(Continued from Page 1 “From the Chair”)
Though our Clerk Mediation Program has yet to see much utilization,
with our aging population, I can only surmise that this program will soon have
an important role to play as Clerks and their staff struggle to meet the growing
demands of siblings who cannot agree on how to best care for Mom or Dad or
who cannot amicably resolve their disputes over the administration of a par-ent’s
estate.
If not for mediation, where would we now be? Where would we find
ourselves in the months or even years to come? How many sessions of court
would we have to close, how many citizens would be forced to live with con-flicts
that they have not the resources to address or resolve? Mediators do not
receive enough credit for their work or their successes. I hope that those who
are reading The Intermediary today will know that many, including the mem-bers
and staff of the Dispute Resolution Commission, are grateful for their
contributions and we recognize that our courts could not be as efficient or as
productive without them.
Even with what is already being done, I know that mediators are con-tinuing
to look for creative ways to help citizens and to do even more to insure
that our courts are efficient and productive. Our Executive Director, Leslie
Ratliff, describes one such effort in her article included in this edition about
the new foreclosure mediation programs that are springing up across our coun-try
in response to the economic crisis. I commend this article to you.
I, again, thank you for all you do for our citizens and courts. I am
confident that your contributions will help to tide us though this dark period in
our economic history and that mediators and mediation programs will survive
this crisis stronger, more respected and in greater demand than ever before.
The next meeting of the Dispute Resolution Commission is scheduled
for Friday, May 8, in Charlotte. An agenda for the May meeting will
be posted at www.ncdrc.org two weeks prior to the meeting. All me-diators
are welcome to attend, but the Commission asks that you con-tact
its office and let staff know you will be present, so that seating is
assured.
NEXT
COMMISSION
MEETING
Page 3
The Commission has begun to re-ceive
increasing numbers of calls
from mediators and attorneys regard-ing
some situations which appear to
be related to the faltering economy.
The information below is intended to
assist mediators who find
themselves in similar situa-tions:
Vanishing parties:
Q. I was assigned by the
court to mediate a case. I
understand that the defendant
has been evicted. Neither the plain-tiff
nor the de fendant’s lawyer have
a current address for him. What
should I do?
A. In the situation described above,
Betty Fuqua, an ex-officio member
of the Commission and Superior
Court Trial Court Coordinator in
District 3A, suggests that the media-tor
might be able to find an address
by contacting the institution that
foreclosed on the property. Though
parties have an obligation to keep
the court apprised of their where-abouts
and mediators are not obli-gated
to do an exhaustive search, she
notes that parties can sometimes be
located with minimal effort. Failing
that, she says that in her district me-diators
are advised to send notice to
the last address they have for the
missing individual and to hold the
mediation and report on attendance.
She adds that mediators should be
sure and set the mediation far
enough ahead to enable the post of-fice
to forward the notice in the
event the defendant has supplied a
forwarding address. Ms. Fuqua
suggests that mediators may want to
contact court staff to learn how such
situations are handled in other dis-tricts.
In no event should a mediator
simply drop the matter because s/he
cannot locate a party.
The high cost of gasoline and/or
rationed fuel:
Q. Opposing counsel and I did not
get back to our court-appointed
mediator quickly enough and he
has now gone ahead and set a date
for the mediation and scheduled it
in the county where he lives rather
than out here where we are. Can
the mediator make us come
to him?
A. During the period that
gasoline was so costly and,
especially while it was
being rationed in western
North Carolina, it made it
difficult for mediators to travel.
The Commission’s office was con-tacted
by attorneys regarding me-diators
who sought to address this
problem by scheduling their me-diations
close to home or who
sought to be reimbursed for their
mileage. MSC Rule 3.A. provides
that, “Unless all parties and the
mediator agree, the mediated set-tlement
conference shall be held in
the Courthouse or other public or
community building in the county
where the case is pending...” In
addition, MSC Rule 7.B. limits
court appointed mediator compen-sation
to a scheduling fee and
hourly rate for service as the me-diator.
Compensation for mileage
or windshield time is not permitted
regardless of the cost of travel.
Mediators who have agreed to ac-cept
appointments in districts that
lie at some distance from their
homes, may want to consider re-moving
themselves from some of
the lists. To avoid unnecessary
travel when costs are high, it is
also important for mediators to
check the day before or even the
morning the mediation is sched-uled
to be held, to confirm that the
case has not settled pre-mediation.
Attorneys can help by remember-ing
to call their mediator as soon as
possible if they are able to reach an
early settlement.
If a mediator cannot, in fact, obtain
the fuel to travel because of ration-ing,
s/he should consider reschedul-ing
the mediation, if the parties are
not willing to travel to the media-tor’s
location. Though mediated
settlement conferences are intended
to be held face-to-face, if the parties
cannot reschedule or the deadline is
approaching, with everyone’s agree-ment,
the mediation could be held by
conference call.
The check is in the mail (or maybe
not):
Q. A party won’t pay me, what
should I do?
A. If a mediator has not been able to
collect his/her fee, Ms. Fuqua sug-gests
that s/he may write to the Sen-ior
Resident Superior Court Judge or
call his or designee for the MSC
Program. Sometimes a judge or
court staff will call an attorney and
ask them to encourage their client to
pay. Usually, Ms. Fuqua says, that
is all it takes in her district. If a dis-trict
is not willing to contact the at-torney
or does so and the client still
does not pay, the mediator may file a
Motion And Order For Show Cause
Hearing (AOC-CV-815). It may not
be cost effective to file the Motion
for small amounts of money because
the mediator will need to appear for
the hearing and will have to pay the
sheriff to serve the Motion.
Q. A lawyer routinely selects me
and has allowed clients to walk with-out
paying me three times now?
When I try to contact him about this
situation, he refuses to take my calls.
Do I have any recourse against the
lawyer for my fees?
A. The mediator may want to de-velop
a contract for his/her media-tion
services which places an obliga-tion
to pay on both the attorney and
party. This is arguably not profes-sional
conduct and the mediator
might want to consider alerting the
Chief Justice’s Commission on Pro-fessionalism.
♦
The Economy and Related Issues Raise Questions For Mediators & Lawyers
Page 4
Mediation Used in Medicaid Disputes
Mediators are making a real difference in the lives of many of North Carolina’s poorest citizens by participating in a new
effort to use mediation to address appeals contesting reductions or denials of services
under the Medicaid Program. Terri Masiello, a Dispute Resolution Commission mem-ber
and Executive Director of the Piedmont Mediation Center in Statesville, sat for an
interview with Commission staff to talk about this new and important effort:
Q: Terri, can you provide a little background? Why are Medicaid appeals being medi-ated?
A: It is no secret that health care costs overall are rising in North Carolina and that ex-penses
associated with Medicaid, the federal health insurance program serving those
with limited incomes, are growing. Our State’s population is aging and many of our
elderly are poor. The economic crisis is also driving many individuals and families to depend on Medicaid for
health care emergencies and other services as jobs and health insurance are lost and savings depleted. In addition,
our State has lost millions of dollars in the recent community services situation. In an effort to conserve resources,
Medicaid responded to these situations by cracking down on services. State regulators asked Value Options, a ser-vice
broker hired to approve many of the services provided Medicaid patients, to more carefully screen new requests
for services and to re-evaluate services already approved. The result has been an increase both in denials of requests
for new services and in terminations, suspensions or reductions of services already approved. Many, whose requests
for services were denied or reduced, appealed to the Office of Administrative Hearings (OAH). The filing of all
these appeals resulted in a tremendous backlog and delays at OAH. OAH Administrative Law Judge Don Overby,
who is a certified superior court mediator, suggested to Chief Administrative Law Judge Julian Mann, who is also
certified, that perhaps these cases could be mediated. This suggestion started the ball rolling and initial discussions
were held with Diann Seigle, Executive Director of Carolina Dispute Settlement Services in Raleigh, and, later, Jody
Minor, Executive Director of the Mediation Network of North Carolina (Network). Senator Nesbitt chaired a legis-lative
committee which considered mediation in this context. Initially, discussions were about mediation of appeals
involving mental health services only, but later expanded to mediation of all Medicaid appeals.
Q: I have heard there were fears that North Carolina could lose federal funding for Medicaid if appeals were not proc-essed
timely?
A: Yes, I also understand that there were concerns that could happen.
Q: Temporary legislation (which sunsets on July 1, 2010) was adopted that provides for the use of mediation in Medi-caid
appeals. Can you tell us about the legislation?
A: A note was added to G.S. 108A-54, to provide, that upon receipt of an appeal request from a Medicaid applicant or
recipient to whom services have been denied or limited, the Chief Administrative Law Judge of OAH shall immedi-ately
notify the Network which then has five days to contact the applicant or recipient to offer mediation services. In
effect, mediation has become the first step in the appeal process. If the applicant or recipient is willing, the mediation
must be completed within 25 days of the submission of appeal request.
Q: That seems like a really tight time frame. Can you tell me more about how the process works?
A: The Network is responsible for dispersing cases among participating dispute settlement centers with the referrals go-ing
to the centers closest to the applicant or recipient petitioners. The Center actually contacts the petitioner and de-termines
whether s/he is willing to participate in mediation. Generally, only the petitioner and a representative of
Value-Options or the State attend, but others such as caretakers or social workers may also participate, particularly
in instances where the petitioner needs additional support. The center schedules the mediation which may be held in
person if the petitioner is willing and able to attend, or by telephone. Most sessions take about an hour. A mediator
will, upon request, call a short recess to permit those attending to obtain legal or other advice usually by telephone.
We advise applicants and recipients beforehand to ask anyone they may want to consult with, to be on standby dur-ing
the mediation. (Continued on Page 5)
Page 5
Q: Is mediation available statewide?
A: Currently 17 of the 23 dispute settlement centers operating in North Carolina are working to make Medicaid appeals
mediation available statewide. (The pie chart below illustrates how the case load is distributed among the various
centers.)
Q: Terri, what kinds of situations have you seen in mediation?
A: We have seen appeals involving denials or reductions in medical services across a range of issues. We have medi-ated
denials of requests for medication and medical procedures. Many of the cases involved requests for community
support or other services for emotionally disabled individuals. My center has also had a fair amount of cases in-volving
minors and requests for orthodontia treatment or help with learning disabilities or physical disabilities. Re-quests
for services such as private duty nursing or an attendant to accompany a disabled child to school have also
been mediated. Recently, I mediated a case involving a family with a handicapped child. As the child grew, he
could no longer turn his wheel chair around in their only bathroom. The only possible way to enlarge the bathroom
to insure space for the wheelchair was to push out the back wall. The request had been denied because it resulted in
increasing the square footage of the home. These types of discussions are well suited for mediation.
Q: Jody Minor, tells me that between October 1, 2008, when the Network began to disperse cases and March 31, 2009,
that 2,425 Medicaid appeals were referred for mediation. (Mr. Minor provided the graph below, illustrating total
volume referred to all Centers from October, 2008, through March, 2009.) That’s a tremendous number. How
many referrals has your center received and has mediation been helpful in resolving them?
A: From October 1, 2008, though March 10, 2009, we had 82 referrals. Mediation has been very successful. Not only
are applicants or recipients accepting the offer to mediate nearly all of the time, but between 80-90 percent of the
referrals are settling in mediation.
Q: I am amazed that you can get both such high participation and such high settlement rates when you are mediating
cases involving medical and mental health treatment issues.
A. Unless a Legal Aid lawyer is involved, the reality is that these folks don’t usually have funds to hire an attorney, so
they can either come to an informal process like mediation or they can go to OAH and represent themselves in a
formal legal proceeding. Most folks are intimidated by the latter. As for the settlement rate, sometimes applicants or
recipients struggle to explain their needs and they understand how hard it can be to communicate with a big
(Continued on Page 10)
Page 6
Commission Adopts New Advisory Opinion
The Dispute Resolution Commission has adopted new Advisory Opinion 08-15, pursuant to its Advisory Opinion Policy.
The Commission encourages all mediators who are facing an ethical dilemma or who have a question about rule inter-pretation
to contact the Commission’s office and request guidance. If time is of the essence, a mediator may seek imme-diate
assistance from Commission staff over the telephone or by e-mail. The call and advice given will be noted in the
Commission’s Call Log. Mediators may also request a written opinion from the Commission. Written Advisory Opin-ions
carry the full weight of the Commission. To view the Advisory Opinion Policy, go to www.ncdrc.org and click on
“Mediator Ethics” and then click on “Advisory Opinion Policy”. Previously adopted Opinions may also be viewed on
the web. The full text of the new Opinion follows:
08-15
Advisory Opinion of the
NC Dispute Resolution Commission
(Adopted and Issued by the Commission on November 7, 2008)
N.C. Gen. Stat. §7A-38.2(b) provides, “[t]he administration of mediator certification, regulation of mediator conduct,
and certification shall be conducted through the Dispute Resolution Commission, established under the Judicial Depart-ment.”
On August 28, 1998, the Commission adopted an Advisory Opinions Policy encouraging mediators to seek guid-ance
on dilemmas that arise in the context of their mediation practice. In adopting the Policy and issuing opinions, the
Commission seeks to educate mediators and to protect the public.
Concern Raised
The heirs of an estate had been unable to reach an agreement as to who should serve as the estate’s administrator/
fiduciary. The Clerk of Superior Court in the county where the matter was pending referred the dispute to mediation.
During the mediation, the heirs, all of whom were represented by counsel, reached an agreement which named their me-diator
as the administrator. When the agreement was later presented to the Clerk for approval, one of the heirs objected
to the appointment arguing, in effect, that she thought it was a conflict of interest for the mediator to agree to serve as the
administrator. That individual told the Clerk that she had expressed concerns about the arrangement during the media-tion,
but that her concerns had been brushed aside and she had not continued to object. Inquiry was made to the Com-mission
as to where it was appropriate for the mediator to agree to serve as the administrator/fiduciary.
Advisory Opinion
Standard VII addresses conflicts of interest. That Standard provides that, “A mediator shall not allow any personal inter-est
to interfere with the primary obligation to impartially serve the parties to the dispute”. Subsection E. of that Standard
also provides that, “A mediator shall not use information obtained during a mediation for personal gain or advantage”.
In agreeing to serve as the administrator/fiduciary, the mediator may have had a pure motive and felt that he was going
the extra mile to help these heirs settle their dispute. Nevertheless, in accepting the appointment, he failed to give due
regard to the conflict between the parties interests and the fact that he stood to gain personally and financially from his
appointment as administrator.
Significant fees are often associated with service as an administrator/fiduciary or guardian. A mediator who promotes
himself or herself as available to serve in that capacity creates the impression that he or she manipulated the mediation
(Continued on Page 7)
Page 7
process or the parties with the ultimate goal of furthering his/her own interests at the expense of those of the parties.
A mediator who accepts such an appointment at the offer or even insistence of the parties creates the same perception.
In particular, that perception is created where, as reportedly here, the mediator allowed his name to be set forth in the
agreement even after one of the heirs objected to the mediator’s service as administrator. Such perceptions serve to dis-credit
the mediator, the mediation process, the Clerk Mediation Program and, ultimately, the Commission and courts.
A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept an appoint-ment
as a fiduciary that flows from the mediation process. A mediator who accepts such an appointment creates the per-ception
that he or she manipulated the mediation process and the parties to his or her own advantage in obtaining the
appointment and, thus, compromised his/her neutrality in the process.
A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept an appoint-ment
as a fiduciary that flows from the mediation process. A mediator who accepts such an appointment creates the per-ception
that he or she manipulated the mediation process and the parties to his or her own advantage in obtaining the
appointment and, thus, compromised his/her neutrality in the process.
* * * * * * *
Foreclosure Mediation -- A Timely Idea
In the wake of lost jobs, rising interest rates, and falling real estate values, many states have
seen foreclosure filings soar. Many courts have been overwhelmed with such filings. Our
neighbor to the South, Florida, has been especially hard hit. Judge Hugh Starnes, a retired Florida judge, has been called
back into service to man Ft. Myers special foreclosure court. A CNN reporter who sat in on “rocket docket”, as Judge
Starnes’ court is known locally, reported that the foreclosure process takes only seconds and sometimes the court hears
up to 1,000 cases a day. Judge Starnes told CNN that, “It is a legal, procedural response to an overwhelming number of
filings that unfortunately is necessary.” Judge Starnes, who used to hear family cases, characterized his current job as an
“unhappy one”, where there is not much opportunity for problem solving.
Judge Starnes and Lee County, Florida, are not alone. Other Florida circuits are looking for ways to address their own
rising tide of foreclosure cases. The Florida Bar News reports that 423,700 foreclosures in Florida have been projected
for 2009 and that 1.4 million are projected over the next four years. Not only are these foreclosures resulting in evic-tions
and ruined credit scores, they leave neighborhoods coping with overgrown lawns, vandalism, and ever greater de-pressed
values in a housing market that has already fallen fifty percent in some areas of the State. One reason Florida
has been so hard hit is that many of the homes in foreclosure were owned by speculators or were bought as vacation
homes. As Judge Starnes notes, such homes encompass about sixty percent of his caseload and the owners usually don’t
even bother to appear for the hearing. That fact explains why these cases often take only seconds to process. (A video
of the rocket docket in action is available on CNN.)
(Continued on Page 12)
Note from the Executive Director: Advisory Opinion 08-15 addresses a situation where a mediator permitted himself
to be appointed an Administrator in an estate matter involving siblings arguing over who should be appointed the Ad-ministrator.
The Commission has also learned of a situation where a mediator of a custody dispute, which was mediated
privately, agreed to also serve as the Parent Coordinator for the couple and their children. This is also a paid position
and a copy of the Opinion was provided to this mediator. In both instances, the mediator’s conduct invites the percep-tion
that he or she manipulated the process and the parties to his/her own financial advantage. Though, the Opinion
does not address it, such conduct also raises potential confidentiality concerns when a mediator shifts between roles.
Confidentially concerns may be especially problematic in the Parent Coordinator instance.
Page 8
SUPERIOR COURT TRAINING
Beason & Ellis Conflict Resolution, LLC: 40-hour Superior Court Mediator Training, May 13-17, in Char-lotte
and July 29 - August 2, in Chapel Hill. For more information or to register, call (919) 419-9979 or (866)
517-0145 or visit their web site: www.beasonellis.com.
Carolina Dispute Settlement Services: 40-hour Superior Court Mediator Training, July 20 - 24 in Raleigh. For
more information or to register, contact Dawn Bryant at (919) 755-4646, Ext. 23. Web site: www.notrials.com.
Mediation, Inc: 40-hour superior court mediator training course, April 22-26, in Raleigh and August 18-22, in
Asheville. For more information or to register, contact Beth Adkins at (919) 636-5697 or (888) 842-6157 or
visit their web site: www.mediationincnc.com.
FAMILY FINANCIAL TRAINING
Atlanta Divorce Mediators, Inc: 40-hour Family Mediation Training, April 30-May 4, in Atlanta, GA; June 22
- 26, in Atlanta, GA; August 27 - 31, in Atlanta, GA. For more information, contact Melissa C. Heard at (770)
778-7618. Web site: www.mediationtraining.net.
Carolina Dispute Settlement Services: 40-hour Family Mediation Training. See contact information above.
Mediation, Inc: 40-hour Family Mediation Training, September 2 - 6 in Chapel Hill. See above for contact
information.
SUPPLEMENTAL MSC/FFS
16-HOUR TRAINING
Beason and Ellis Conflict Resolution , LLC: Superior Court Supplemental Training. For training dates and
additional information, call (919) 419-9979 or visit www.beasonellis.com.
Carolina Dispute Settlement Services: Superior Court and Family Financial Supplemental Training. Family
Financial Supplemental Training is scheduled for June 10 - 11 in Raleigh. For training dates and additional in-formation,
or to register, contact Dawn Bryant at (919) 755-4646, Ext.23. Or visit: www.notrials.com.
Mediation, Inc: Superior Court and Family Financial Supplemental Training. For additional information or to
register, call (888) 842-6157 or (919) 636-5697 or visit: www.mediationincnc.com.
Upcoming Mediator
Certification Training
Page 9
New to the Commission’s Web-Site
The Commission asks all mediators to complete three hours of Continuing
Mediator Education (CME) annually. To help mediators comply, the Com-mission
has posted a list of books on mediation at
www.ncdrc.org. Click on “Continuing Education for
Mediators” then click on “Suggested
Readings”. The books listed are favorites of
Commission Members.
6-HOUR FFS/MSC COURSE
(Covers North Carolina legal terminology, court structure, and civil procedure)
Professor Mark W. Morris: 6-hour course, August 29, 2009, NCCU School of Law. To pre-register online,
go to www.nccourts.homestead.com.
The ADR Center of Wilimington: 6-hour course. For more information or to register, contact John J. Murphy
at (910) 362-8000 or e-mail at johnm@theadrcenter.org. Web site: www.theadrcenter.org.
Judge H. William Constangy (Charlotte): For more information, contact Judge Constangy at (704) 807-8164.
CLERK TRAINING
The ADR Center: Clerk Training Course, Wilmington. For additional information contact John J. Murphy at
(910) 362-8000 or visit: www.theadrcenter.org.
Mediation, Inc: The Clerk Training Course available on DVD. Contact Beth Adkins for information on renting
the DVD. See above for contact information.
CME AND ADVANCED TRAINING OPPORTUNITIES
Atlanta Divorce Mediators, Inc.: is presenting Advanced Divorce Practicum Training on July 24-25 and De-cember
4-5, in Atlanta, GA. For additional information, call (770) 778-7618 or visit
www.mediationtraining.net.
Mediation, Inc: is presenting Advanced Negotiation Crash Course on June 24 in Asheville. See above for addi-tional
information.
North Carolina Bar Association: is presenting the following programs: “Annual Estate Planning and Fiduciary
Law Program” on July 16-19 at Kiawah Island, SC; “Changes: A Labor and Employment Law Update” on June
26-27 in Asheville; “The Martial Deduction: Planning, Funding and Distributing” on May 1-2 in Greensboro;
“Men Have Issues Too (2009 Family Law Section Annual Meeting); May 1-3 in Wrightsville Beach; and
“Powerful Communication Skills: Winning Strategies For Lawyers” on April 30 - May 1 in Cary.
Page 10
(Mediation Used in Medicaid Disputes continued from Page 5)
bureaucracy. Mediation means that, for a time, they have the undivided attention of a representative of that bureauc-racy
and it is often the first time that they have really heard each other. Many times, the denial or reduction is a re-sult
of a misunderstanding or the lack of documented need.
Often times, applicants or recipients will accept a denial or reduction as long as they understand the reason for the
decision. Mediation provides an opportunity for State personnel or Value Options staff to explain their reasoning. It
is my understanding that only a fraction of the cases where the State refused to alter its decision to deny or reduce
services at mediation, are being heard by OAH. Once they understand the decision, applicants and recipients typi-cally
don’t pursue it further. In fact, my measure of success for many of these mediations is not whether the service
is provided, but whether the applicant or recipient understands why it was denied.
Q: Who is conducting these mediations and are they provided with any training?
A: The mediations are conducted by center staff or volunteers. In my particular center, I did the mediations initially
until I had a good feel for how they worked and could share that information with my staff and volunteers. Our staff
and volunteers were already trained as mediators and had actual mediation experience. They were also provided
with some specialized training by DHHS. It was not mediation training, but rather information on case screening,
Medicaid terminology, information about the kinds of situations that might be referred, that sort of material.
Q: What about funding for this effort?
A: Centers are paid a flat rate. We receive $100.00 per case for cases that do not make it to mediation. That would usu-ally
be a situation where we can’t find the applicant or recipient or he or she does not want to mediate. We receive
$200.00 per case for cases where we provide either conciliation or mediation services.
Q: Are these mediations confidential? What happens with the agreement if there is one?
A: The process is generally confidential, though we observe the exceptions to confidentiality set forth in the Supreme
Court’s Standards of Professional Conduct for Mediators, i.e., threats of child or elder abuse, threats to do harm to
persons or property. If mediation is successful, the mediator reports that fact to OAH and they confirm it with Value
Options or the State. Then, the matter is dismissed. If mediation is not held because we cannot locate the applicant
or recipient or he or she declines mediation, or if mediation is not successful, the mediator informs the Hearing Divi-sion
at OAH and the case proceeds to a hearing.
Q. Terri, has been there a lot of interest in what you are doing?
A: Absolutely, to my knowledge this is the first time these kinds of cases have ever been mediated. Other states have
expressed a great deal of interest in what is happening here.
Q: Is there anything else that you would like the Intermediary’s readers to know about this new effort?
A: I would like them to know that I have found this work to be very gratifying. We are serving a fragile population that
often struggles to be heard by the government agencies on which they depend. They are used to being shuttled from
one telephone line to the next or from one person to another. They are so grateful for a process that they feel gives
them a chance to be heard and to have their concerns acknowledged. That has been almost universally true in my
experience, even when the denial or reductions remain in tact.
Note: To learn more about Terri Masiello, see the article on New Commission Members on page 14.
Page 11
Commission Revamps Renewal Process
Once, again, it is time for the annual spring renewal of mediator certifications. In an effort, to make it easier for media-tors
to renew, the Commission has revamped the mechanics of its on line renewal process. There will be a number of
changes this year:
1) Mediators will go directly to www.ncdrc.org to renew. In early June, mediators
will receive a packet from the Commission. Included with that packet will be bright
yellow sheet of paper assigning the recipient a temporary password. With that pass-word
in hand, mediators will go directly to the Commission’s web site at
www.ncdrc.org and click on the Commission’s royal blue logo. From that portal,
mediators will have an opportunity to enter their email address and temporary pass-word
in order to access and complete a renewal application.
2) Mediators will select a permanent password. Once a mediator’s temporary password has
been accepted, he or she will be asked to select a permanent password. Mediators may use that
password during subsequent renewal periods or at any time during the year to go to the Commis-sion’s
website to access and update their contact, availability or biographical information.
3) Invoices will not be mailed separately. Once the mediator has completed and submitted his or
her renewal application, the program will print an invoice for the annual renewal fee and the me-diator
will mail the invoice and his or her check to the Commission’s office.
The Commission has been grateful for the patience of mediators with on-line renewal which, has admittedly, not worked
well to date. This new design is, in fact, the very process that the Commission requested four year’s ago, but was not
permitted to implement. Unfortunately, the design for the process that was instead imposed on the Commission was
plagued by technological problems, proved unfathomable to many mediators, and resulted in extra work for Commission
staff. The Commission sincerely hopes that this more streamlined approach will prove more workable.
Mediators will also note an additional change in the ethics’ portion of the renewal application. Mediators will be asked
not only to disclose convictions, disciplinary matters, and judicial sanctions; but also civil judgments, tax liens and
bankruptcies. While the Commission understands that some may view requiring these additional disclosures as inva-sive,
experience to date has convinced the Commission of the utility of having this information. For example, it may be
relevant for the Commission to know that an applicant for family financial mediator certification has repeatedly failed
over a period of years to pay his or her child support. The Commission wishes to assure all applicants that it is unlikely
that a single bankruptcy, tax lien or civil judgment would derail an initial or renewal applica-tion.
The Commission is looking more for patterns or multiple situations that raise serious con-cerns.
The Commission will keep all such information highly confidential.
As always, the Commission deeply appreciates the contributions that mediators made this year
to work of our courts and hopes that all will continue to serve in the coming year.
Are you a blogger? Do you like to read blogs? The Commission
has posted a list of Mediation Blogs on it’s web site at
www.ncdrc.org, including one by DRC certified mediator, Roy
Baroff. To see the list, click on “Continuing Education for Media-tors”
then click on “Mediation Blogs”.
Click Here
Page 12
(Foreclosure Mediation -- A Timely Idea Continued from Page 7)
Florida’s twenty judicial circuits have worked hard to keep up with the situation, but many are concerned about the
patchwork approach that exists throughout the State’s courts for handling foreclosures, especially as it affects owners
who, in fact, occupy their homes. The March 15, 2009, edition of the Florida Bar News reports that a group of private
lawyers and legal aid groups have now petitioned Florida’s Supreme Court to invoke it’s emergency rule-making author-ity
to mandate that all new and pending mortgage foreclosure actions involving owner occupied residences, be referred
to mediation. The petitioners argue that too often homes are lost because owners, who are behind in their payments, are
never able to reach anyone in the lender’s office who is willing to talk to them and who has authority to modify their
payment terms. Many times, the petitioners report, the owner has no opportunity to speak to anyone until the summary
judgment hearing or even the foreclosure sale itself. In either instance, it is too late by then to turn things around. The
petitioners have not only asked the Court to mandate mediation of foreclosure actions in Florida, but to also require the
home owner and a representative of the lender with authority to modify terms, to appear in person for the meeting. They
are also asking the Court to require the lender to cover the cost of the mediation. The petitioners argue that the uniform
statewide requirements they propose will allow many, who might otherwise be evicted, to remain in their homes and will
also generally protect property values across Florida.
Some Florida circuits have already begun to experiment with mediation in foreclosure actions. The 1st and 19th judicial
circuits have both set up a new system for handling foreclosures that includes special mediation courts. The special
courts are being run by the Collins Center for Public Policy. (The Collins Center, established in 1988, is an independent
entity charged with finding impartial solutions to controversial problems. It exceeds the bounds of a traditional think
tank in that it seeks opportunities and takes action on projects that impact the citizens of Florida.) Rob Petry of the
Collins Center believes mediation holds out the promise of helping homeowners, lenders and local communities. He
explains that the mediation does not happen in a vacuum. Homeowners must first undergo credit counseling to deter-mine
how large a monthly payment they can realistically afford. Lenders, he adds, must make available a representative
who has the power to modify the mortgage. If such a person fails to appear, the judge, he says, has the power to dismiss
the case.
Florida is not the only state to explore using mediation as a tool to address foreclosure filings. New Jersey operates a
foreclosure mediation program. For no charge, a New Jersey homeowner facing foreclosure has access to housing coun-selors
and lawyers who try to help the homeowner devise a modified payment plan that may involve reduced penalties
and/or lower interest rates. If the lender rejects the modified plan, the court appoints a mediator who brings the bor-rower
and lender together face-to-face to discuss options for re-payment. California, Connecticut, Iowa, Minnesota, Ohio
and others have also inserted mediation components into legislation or programs they have adopted to address rising
foreclosure rates. The Supreme Court of Ohio has developed a comprehensive web site on its Foreclosure Mediation
Program which explains, step-by-step, how the program operates. Legislation, rules and forms used to administer the
program are posted on the web site. The site also includes a consumers’ guide to foreclosure mediation which also of-fers
suggestions to mediators on how they may become involved.
Interest in developing ways to help homeowners remain in their homes has increased even more since President
Obama’s announcement of his 75 billion dollar plan to stem the rising tide of foreclosure and stabilize the housing mar-ket.
Additional legislation and programs are expected at the state level in the wake of the federal legislation.
While interest in mediation as a tool remains high, there are some skeptics. Some do not believe that there is enough
incentive for lenders to agree to modifications, vandalized homes and blighted neighborhoods notwithstanding. Dan
Skiles, President of First Peoples Bank in Port St. Lucie, Florida, insists that, “You get the third party in there; it does
nothing but run up fees and complicates matters.” Others simply think that the courts are overreaching in using the me-diation
process to modify contracts and extract concessions from lenders.
While North Carolina has not looked to mediation to help resolve such disputes, North Carolina lawmakers and former
Governor Easley set up a program which zeroed in on subprime mortgages. Under the program, which commenced No-vember
1, 2008, firms who service mortgages are required to notify homeowners with troubled loans at least 45 days
prior to filing a foreclosure proceeding against them. At that point, the State Banking Commissioner steps in and sends a
letter to the homeowner encouraging him or her to call a toll-free number to receive advice from a housing counselor. ♦
Page 13
Commission Has New Chair, 5 New Members
And 1 Member Returns!
At the Dispute Resolution Commission’s November Meeting, Judge W.
David Lee, Senior Resident Superior Court Judge in District 20, was sworn
in as the Commission’s chair. The oath of office was administered by out-going
chair, N.C. Court of Appeals Judge Sanford L. Steelman, Jr. Judge
Lee was appointed Chair by Chief Justice Sarah E. Parker. He has already
served one full term on the Commission, and will serve as Chair through
September of 2009. Judge Steelman has agreed to remain active on the
Commission as a liaison from the Court of Appeal’s Mediation Program.
Judge Lee becomes the Commission’s fourth chair following: Judge Ralph
A. Walker, J. Anderson “Andy” Little, and Judge Steelman.
Judge Lee, in turn, administered the oath of office to new Commission
members, Jacqueline R. Clare, attorney and certified mediator; Judge Bar-bara
Jackson of the N.C. Court of Appeals; J. Anderson Little, attorney, cer-tified
mediator and trainer; Terri Masiello, Executive Director of the Pied-mont
Mediation Center; and attorney N. Victor Farah. Each of these new
members will serve a three year term. Clerk of Superior Court Martha H.
Curran, of District 26, was re-appointed to the Commission by the Chief
Justice and was also sworn in at the November Meeting.
The Dispute Resolution Commission is a sixteen-member body comprised
of judges, mediators, attorneys who are not mediators, and interested mem-bers
of the public. The Chief Justice holds the bulk of appointments, but
others are made by the Governor, Speaker of the House, President Pro Tem-pore
of the Senate, and the President of the Bar.
In addition to Judge Steelman, Ellen Gelbin has joined the Commission as
liaison from the NCBA’s Dispute Resolution Section.
Members Complete Terms
At its November meeting, the Com-mission
said goodbye to members
who have completed their terms:
Julius E. Banzet, III; Sherman Lee
Criner; and Diann Seigle. Both
outgoing Chair, Judge Sanford
Steelman, Jr., and in coming Chair
Judge W. David Lee, praised the
contributions of the departing
members and thanked them for
their hard work. In particular, Mr.
Criner was praised for his service
as the Chair of the Commission’s
Mediator Certification and Training
Standards Committee and Ms. Sei-gle
for her work in envisioning and
developing the new District Crimi-nal
Court Mediation Program.
In addition to the loss of these
members, Court of Appeals Judge
Judge Sanford L. Steelman, Jr., of
Union County, completed two
terms as a member of the Commis-sion
and one as its Chair. Judge
Lee, thanked Judge Steelman for
his service and, most especially, for
his leadership. He also noted that
he was pleased to announce that
Judge Steelman had agreed to re-main
active on the Commission in a
new role, serving as liaison from
the Court of Appeal’s Mediation
Program. Judge Lee thanked Judge
Steelman for his continuing com-mitment
to the Commission and
said that he would be grateful for
Judge Steelman’s guidance as he
transitioned in his new role as
Chair. Judge Steelman served six
years on the Commission, two of
them as its Chair.
Judge Steelman, Mr. Banzet, Mr.
Criner and Ms. Seigle, received
plaques expressing the Commis-sion’s
gratitude for their service.
The Commission Congratulates
Two New Mediation Trainers
The Commission has certified two new mediator training
programs affiliated with two North Carolina Universities:
♦ Ellen Gelbin will teach a course on Superior Court Mediation at
Wake Forest University School of Law and
♦ Roy Baroff will offer a course on Superior Court Mediation in
UNC Greensboro’s Master’s Degree in Conflict Resolution Program.
These courses are designed for
students and are not open to the
general public.
There were new faces at the Com-mission’s
November 7th meeting in
Blowing Rock! The Dispute Reso-lution
Commission warmly wel-comes
its new members and looks
forward to their contributions:
J a c q u e l i n e
“Jackie” R. Clare
is an attorney and
certified MSC
Mediator. She
began her legal
career at Womble,
Carlye, Sandridge
and Rice where she focused on
complex commercial litigation and
bankruptcy. She became a certi-fied
mediator in 1993 and has
since devoted her career to being a
full time mediator. She focuses
her mediation practice in the areas
of business, bankruptcy, workers’
compensation, personal injury and
medical malpractice. Ms. Clare is
the past Chair of the NCBA’s Dis-pute
Resolution Section and editor
of Alternative Dispute Resolution
in North Carolina: A New Civil
Procedure, a history of dispute
resolution in North Carolina.
Judge Lee has appointed Ms. Clare
to the Commission’s Standards,
Disciplinary and Advisory Opin-ions
Committee.
The Honorable
Judge Barbara
Jackson currently
sits on the N.C.
Court of Appeals.
She received her
J.D. from the Uni-versity
of North
Carolina at Chapel Hill in 1990.
Prior to assuming her seat on the
Court of Appeals, Judge Jackson:
served as General Council to the
N.C. Department of Labor; was an
Associate with Holt York McDar-ris;
served as Deputy General
Council to the N.C. Governor’s
Advocacy Council for Persons
with Disabilities; and as Associate
General Counsel to Governor
James G. Martin. Judge Jackson is
the recipient of “The Order of the
Long Leaf Pine” and is a Fellow
with the NC Institute of Political
Leadership. She has been very ac-tive
with the North Carolina Bar
Association, the Wake County Bar
Association (Board of Directors),
and the North Carolina Association
of Women Attorneys. Judge Lee
has appointed Judge Jackson to
serve on the Commission’s Execu-tive
Committee.
J. Anderson “Andy”
Little, returns to the
Dispute Resolution
Commission after
having served previ-ously
as both a mem-ber
and as Chair. Mr.
Little is a certified mediator, a me-diation
trainer and the author of
Making Money Talk: How to Medi-ate
Insured Claims and Other
Monetary Disputes. Mr. Little was
an early proponent of mediation in
North Carolina and was instrumen-tal
in helping to establish the supe-rior
court’s Mediated Settlement
Conference Program in the early
1990’s. He was also the first Chair
of the NCBA’s Dispute Resolution
Section. Mr. Little received his
law degree from the University of
North Carolina at Chapel Hill.
Judge Lee has asked Mr. Little to
chair the Commission’s Program
Oversight Committee.
Terri Masiello is
the Executive
Director of the
Piedmont Media-tion
Center in
Statesville. Ms.
Masiello holds a
B.S. in Social Work and a Business
Management Certificate from
Hampton Roads.
Ms. Masiello was one of the first to
be certified as a District Criminal
Court Mediator in North Carolina
and served as a member of the Com-mission’s
Ad Hoc Committee which
drafted the rules for the new District
Criminal Court Mediation Program.
Ms. Masiello also trainers mediators.
She is also certified as a Mediated
Settlement Conference and Clerk
Program Mediator. Judge Lee has
appointed Ms. Masiello to the Com-mission’s
Standards, Disciplinary
and Advisory Opinions Committee.
N. Victor Farah is a
Raleigh attorney with
the Jernigan Law
Firm. He primarily
practices workers’
compensation law.
Mr. Farah was admit-ted
to the North Caro-lina
State Bar in 1987 and is a Board
Certified Specialist in Workers’
Compensation Law. He has served
on the Board of Governors for the
N.C. Academy of Trial Lawyers and
as Chair of the NCBA’s Workers’
Compensation Section. He also vol-unteers
as a peer counselor for the
NCBA’s PALS Committee. Mr.
Farah is a native of Detroit and a
graduate of Wayne State University
Law School. Judge Lee has ap-pointed
Mr. Farah to serve on the
Commission’s Standards, Discipli-nary
and Advisory Opinions Com-mittee.
NEW FACES AT THE COMMISSION
Page 14
Page 15
The Commission Congratulates
Pro Bono Panel Volunteers
Over the past several months, the North Carolina Bar Associa-tion’s
Dispute Resolution Section has been soliciting volunteer
mediators to serve on pro bono panels. Members of the panels have agreed to conduct mediations involv-ing
Legal Aid clients for free or at a reduced rate. The panel is part of NCBA Past-President Janet Ward
Black’s 4-All initiative aimed at securing assistance for those who cannot afford the high cost of litigation
and for whom justice is out of reach.
The names of those mediators who have volunteered to date to serve on the panels are printed below. The
members of the Commission are gratified that so many mediators have volunteered. The Commission sa-lutes
these individuals and congratulates them on their willingness to serve their fellow citizens. In
these tough economic times, an initiative like this takes on even greater importance. It is not too late to be-come
involved. If you are willing to serve, please contact Rick Igou at (919)450-8447 or
Igou@earthlink.net. The Commission encourages your participation in this worthy cause.
Anne Micheaux Akwari
Ann Anderson
LeNoir Ayscue
Barney Barnhardt
Bob Beason
Leonard "Len" Benade
Dorothy C. Bernholz
Donald H. Beskind
William A. Blancato
Richard T. Boyette
Ken Broun
Kenneth P. Carlson, Jr.
Peter T. Chenery
Jacqueline R. Clare
Denise Smith Cline
Howard M. Cohen
Alden B. Cole
R. Sarah Compton
Robert C. Cone
Jeannette Griffith Congdon
William L. "Bill" Daisy
Benjamin Davis
Dawn Dowd
George Doyle
Ashley M. Edwards
René Stemple Ellis
Ed Farthing
Elliot Fus
Charles H. Gardner
Ellen R. Gelbin
Eric Ginsburg
Christopher T. Graebe
J. Brandon Graham
William G. “Will” Granger
A. Holt Gwyn
Jeannie Hall
Jane Harper
Frances W. Henderson
Daniel B. Hill
Bob Holbert
Harriet S. Hopkins
Richard J. “Rick” Igou
James E. Ingram
Deborah M. Jackson
Nancy Byerly Jones
David Kelsey
Eugene Kennedy
Bob Kerner
Harold Koger
Michele A. Ledo
M.J. Longval
John Mabe
Hector MacDonald
Robert “Bob” Martin
Terri Masiello
William M. Mauldin
Marilyn Maynard
Tom McCarty
Ralph Meekins
Kate Mewhinney
Martha New Milam
Jeffrey L. Miller
William J. “Billy Joe” Morgan
Melzer A. “Pat” Morgan, Jr.
Lisa B. Morris, RN, JD
Dennis Myers
Nancy Norelli
G. Jona “Joe” Poe, Jr.
Jim Ragan
Charles E. Rawlings, MD
Mark F. Richardson
A. Douglas Robinson
Theresa Joan Rosenberg
Steven A. Savia
Cameron Simmons
Jim Smith
Adam Stein
Hugh Stevens
Michael A. Swann
Gayle Goldsmith Tuch
Eugene J. Vasile
Reagan H. Weaver
Barbara B. Weyher
Albert Jerome Williams, Jr.
Henry Hall Wilson, III
William F. Wolcott, III
William A. Woodruff

Commission Members
Judge W. David Lee, Chair
Superior Court Judges Office
P.O. Drawer 829
Monroe, NC 28111-0829
Jacqueline R. Clare, Esq.
1011 Vance Street
Raleigh, NC 27608
Jessie M. Conley, Esq.
Pressly Thomas & Conley, P.A.
224 Harrill Street
Statesville, NC 28677
Judge Martha H. Curran
Clerk of Superior Court
P.O. Box 37971
Charlotte, NC 28237-7971
N. Victor Farah
The Jernigan Law Firm
P.O. Box 847
Raleigh, NC 27602-0847
Edward C. Hay, Jr.
Pitts, Hay & Hugenschmidt, P.A.
137 Biltmore Avenue
Asheville, NC 28802
Wayne Huckel
K & L Gates, LLP
Hearst Tower, 47th Floor, Ste. 4700
214 North Tryon Street
Charlotte, NC 28202
N. Lawrence Hudspeth, III, Esq.
Law Offices Lana S. Warlick
P.O. Box 1393
Jacksonville, NC 28541-1393
Judge Barbara Jackson
N.C. Court of Appeals
P.O. Box 888
Raleigh, NC 27602-0888
The Intermediary
Volume 8, Issue 1
April 2009
A Bridge between the Dispute Resolution Commission
and North Carolina’s Certified Mediators
Page 1
From the Chair
By
Judge W. David Lee
With our current economic environment, I have a renewed apprecia-tion
for mediation and our various programs’ roles in our court system. When
resources are scarce, whether due to job losses or pay cuts, many citizens have
difficulty affording the legal assistance they may need. Even if they have the
money to file a lawsuit, protracted litigation and the cost of a trial may make
their situation problematic. In effect, their access to our courts may be lim-ited.
When money is scarce, our courts often “feel the pinch”, as well. On
March 17th, my colleague, and fellow Commission member, Judge Joe
Turner, sent an e-mail to lawyers who practice in the District Court in High
Point and Greensboro advising them that the District did not have enough
judges to handle its current caseload. The District had been using Emergency
Judges to plug the holes, but the Administrative Office of the Courts, Judge
Turner advised them, had told him that money was no longer available for
Emergency Judges. In order to cope, Judge Turner announced that the District
would have to close sessions of court from time-to-time. Just like our citizens
who have been hard hit, our courts must find ways to adapt to our current en-vironment.
While our citizens grapple with these economic and related issues, I
am convinced that our situation would be worse absent the mediation process.
Since their inception, our mediated settlement conference programs have con-sistently
led to the early settlement of thousands of cases. Just as importantly,
they have allowed judges to better allocate their time, turning their attention to
civil cases that did not settle in mediation or to criminal matters. Beyond our
Superior Court’s Mediated Settlement Conference Program and our District
Court’s Family Financial Settlement Program, Dispute Settlement Centers
operating across our State are successfully mediating thousands of juvenile
cases and misdemeanor criminal matters, further reducing the burden on our
courts. In addition, those same Centers serve to resolve a wide array of dis-putes
voluntarily brought to them by citizens hopeful of resolving their con-flicts
short of litigation and court involvement.
(Continued on Page 2)
J. Anderson Little, Esq.
P.O. Box 16205
Chapel Hill, NC 27513
Terri C. Masiello
Piedmont Mediation Center
P.O. Box 1574
Statesville, NC 28687
Judge Ann E. McKown
Durham County Courthouse
6th Floor, Suite 656
201 E. Main Street
Durham, NC 27701
Judge Michael R. Morgan
Wake County Courthouse
P.O. Box 351
Raleigh, NC 27602
Professor Mark Morris
523 Elm Street
Raleigh, NC 27604
Gary Tash
Tash and Kurtz, PLLC
3305 Healy Drive
Winston-Salem, NC 27103-1406
Judge Joseph E. Turner
Guilford County Courthouse
P.O. Box 3008
Greensboro, NC 27402-3008
Commission Staff
Leslie Ratliff, Executive Director
Sharon Corey-Laue, Admin. Asst.
Maureen M. Robinson, Admin. Asst.
P.O. Box 2448
Raleigh, NC 27602-2448
Tele. (919) 890-1415
Fax. (919) 890-1935
Web Address: www.ncdrc.org
In This Issue
From the Chair --------------------- page 1
Upcoming Meeting ---------------- page 2
The Economy & Other Issues --- page 3
Medicaid Mediation -------------- page 4
New Advisory Opinion ---------- page 6
Foreclosure Mediation ------------ page 7
CME Opportunities --------------- page 8
Commission’s Web-Site ---------- page 9
Revamped Renewal Process ---- page 11
Blogger? ---------------------------- page 11
New Chair and Members --------- page 13
Members Complete Terms ------- page 13
New Faces--------------------------- page 14
Pro-bono Volunteers--------------- page 15
The Commission invites its readers to comment on
any articles or information presented in The Inter-mediary
or to write articles for inclusion. Send
your thoughts to the editor, Leslie Ratliff, at les-lie.
ratliff@nccourts.org. We look forward to hearing
from you!
Page 2
(Continued from Page 1 “From the Chair”)
Though our Clerk Mediation Program has yet to see much utilization,
with our aging population, I can only surmise that this program will soon have
an important role to play as Clerks and their staff struggle to meet the growing
demands of siblings who cannot agree on how to best care for Mom or Dad or
who cannot amicably resolve their disputes over the administration of a par-ent’s
estate.
If not for mediation, where would we now be? Where would we find
ourselves in the months or even years to come? How many sessions of court
would we have to close, how many citizens would be forced to live with con-flicts
that they have not the resources to address or resolve? Mediators do not
receive enough credit for their work or their successes. I hope that those who
are reading The Intermediary today will know that many, including the mem-bers
and staff of the Dispute Resolution Commission, are grateful for their
contributions and we recognize that our courts could not be as efficient or as
productive without them.
Even with what is already being done, I know that mediators are con-tinuing
to look for creative ways to help citizens and to do even more to insure
that our courts are efficient and productive. Our Executive Director, Leslie
Ratliff, describes one such effort in her article included in this edition about
the new foreclosure mediation programs that are springing up across our coun-try
in response to the economic crisis. I commend this article to you.
I, again, thank you for all you do for our citizens and courts. I am
confident that your contributions will help to tide us though this dark period in
our economic history and that mediators and mediation programs will survive
this crisis stronger, more respected and in greater demand than ever before.
The next meeting of the Dispute Resolution Commission is scheduled
for Friday, May 8, in Charlotte. An agenda for the May meeting will
be posted at www.ncdrc.org two weeks prior to the meeting. All me-diators
are welcome to attend, but the Commission asks that you con-tact
its office and let staff know you will be present, so that seating is
assured.
NEXT
COMMISSION
MEETING
Page 3
The Commission has begun to re-ceive
increasing numbers of calls
from mediators and attorneys regard-ing
some situations which appear to
be related to the faltering economy.
The information below is intended to
assist mediators who find
themselves in similar situa-tions:
Vanishing parties:
Q. I was assigned by the
court to mediate a case. I
understand that the defendant
has been evicted. Neither the plain-tiff
nor the de fendant’s lawyer have
a current address for him. What
should I do?
A. In the situation described above,
Betty Fuqua, an ex-officio member
of the Commission and Superior
Court Trial Court Coordinator in
District 3A, suggests that the media-tor
might be able to find an address
by contacting the institution that
foreclosed on the property. Though
parties have an obligation to keep
the court apprised of their where-abouts
and mediators are not obli-gated
to do an exhaustive search, she
notes that parties can sometimes be
located with minimal effort. Failing
that, she says that in her district me-diators
are advised to send notice to
the last address they have for the
missing individual and to hold the
mediation and report on attendance.
She adds that mediators should be
sure and set the mediation far
enough ahead to enable the post of-fice
to forward the notice in the
event the defendant has supplied a
forwarding address. Ms. Fuqua
suggests that mediators may want to
contact court staff to learn how such
situations are handled in other dis-tricts.
In no event should a mediator
simply drop the matter because s/he
cannot locate a party.
The high cost of gasoline and/or
rationed fuel:
Q. Opposing counsel and I did not
get back to our court-appointed
mediator quickly enough and he
has now gone ahead and set a date
for the mediation and scheduled it
in the county where he lives rather
than out here where we are. Can
the mediator make us come
to him?
A. During the period that
gasoline was so costly and,
especially while it was
being rationed in western
North Carolina, it made it
difficult for mediators to travel.
The Commission’s office was con-tacted
by attorneys regarding me-diators
who sought to address this
problem by scheduling their me-diations
close to home or who
sought to be reimbursed for their
mileage. MSC Rule 3.A. provides
that, “Unless all parties and the
mediator agree, the mediated set-tlement
conference shall be held in
the Courthouse or other public or
community building in the county
where the case is pending...” In
addition, MSC Rule 7.B. limits
court appointed mediator compen-sation
to a scheduling fee and
hourly rate for service as the me-diator.
Compensation for mileage
or windshield time is not permitted
regardless of the cost of travel.
Mediators who have agreed to ac-cept
appointments in districts that
lie at some distance from their
homes, may want to consider re-moving
themselves from some of
the lists. To avoid unnecessary
travel when costs are high, it is
also important for mediators to
check the day before or even the
morning the mediation is sched-uled
to be held, to confirm that the
case has not settled pre-mediation.
Attorneys can help by remember-ing
to call their mediator as soon as
possible if they are able to reach an
early settlement.
If a mediator cannot, in fact, obtain
the fuel to travel because of ration-ing,
s/he should consider reschedul-ing
the mediation, if the parties are
not willing to travel to the media-tor’s
location. Though mediated
settlement conferences are intended
to be held face-to-face, if the parties
cannot reschedule or the deadline is
approaching, with everyone’s agree-ment,
the mediation could be held by
conference call.
The check is in the mail (or maybe
not):
Q. A party won’t pay me, what
should I do?
A. If a mediator has not been able to
collect his/her fee, Ms. Fuqua sug-gests
that s/he may write to the Sen-ior
Resident Superior Court Judge or
call his or designee for the MSC
Program. Sometimes a judge or
court staff will call an attorney and
ask them to encourage their client to
pay. Usually, Ms. Fuqua says, that
is all it takes in her district. If a dis-trict
is not willing to contact the at-torney
or does so and the client still
does not pay, the mediator may file a
Motion And Order For Show Cause
Hearing (AOC-CV-815). It may not
be cost effective to file the Motion
for small amounts of money because
the mediator will need to appear for
the hearing and will have to pay the
sheriff to serve the Motion.
Q. A lawyer routinely selects me
and has allowed clients to walk with-out
paying me three times now?
When I try to contact him about this
situation, he refuses to take my calls.
Do I have any recourse against the
lawyer for my fees?
A. The mediator may want to de-velop
a contract for his/her media-tion
services which places an obliga-tion
to pay on both the attorney and
party. This is arguably not profes-sional
conduct and the mediator
might want to consider alerting the
Chief Justice’s Commission on Pro-fessionalism.
♦
The Economy and Related Issues Raise Questions For Mediators & Lawyers
Page 4
Mediation Used in Medicaid Disputes
Mediators are making a real difference in the lives of many of North Carolina’s poorest citizens by participating in a new
effort to use mediation to address appeals contesting reductions or denials of services
under the Medicaid Program. Terri Masiello, a Dispute Resolution Commission mem-ber
and Executive Director of the Piedmont Mediation Center in Statesville, sat for an
interview with Commission staff to talk about this new and important effort:
Q: Terri, can you provide a little background? Why are Medicaid appeals being medi-ated?
A: It is no secret that health care costs overall are rising in North Carolina and that ex-penses
associated with Medicaid, the federal health insurance program serving those
with limited incomes, are growing. Our State’s population is aging and many of our
elderly are poor. The economic crisis is also driving many individuals and families to depend on Medicaid for
health care emergencies and other services as jobs and health insurance are lost and savings depleted. In addition,
our State has lost millions of dollars in the recent community services situation. In an effort to conserve resources,
Medicaid responded to these situations by cracking down on services. State regulators asked Value Options, a ser-vice
broker hired to approve many of the services provided Medicaid patients, to more carefully screen new requests
for services and to re-evaluate services already approved. The result has been an increase both in denials of requests
for new services and in terminations, suspensions or reductions of services already approved. Many, whose requests
for services were denied or reduced, appealed to the Office of Administrative Hearings (OAH). The filing of all
these appeals resulted in a tremendous backlog and delays at OAH. OAH Administrative Law Judge Don Overby,
who is a certified superior court mediator, suggested to Chief Administrative Law Judge Julian Mann, who is also
certified, that perhaps these cases could be mediated. This suggestion started the ball rolling and initial discussions
were held with Diann Seigle, Executive Director of Carolina Dispute Settlement Services in Raleigh, and, later, Jody
Minor, Executive Director of the Mediation Network of North Carolina (Network). Senator Nesbitt chaired a legis-lative
committee which considered mediation in this context. Initially, discussions were about mediation of appeals
involving mental health services only, but later expanded to mediation of all Medicaid appeals.
Q: I have heard there were fears that North Carolina could lose federal funding for Medicaid if appeals were not proc-essed
timely?
A: Yes, I also understand that there were concerns that could happen.
Q: Temporary legislation (which sunsets on July 1, 2010) was adopted that provides for the use of mediation in Medi-caid
appeals. Can you tell us about the legislation?
A: A note was added to G.S. 108A-54, to provide, that upon receipt of an appeal request from a Medicaid applicant or
recipient to whom services have been denied or limited, the Chief Administrative Law Judge of OAH shall immedi-ately
notify the Network which then has five days to contact the applicant or recipient to offer mediation services. In
effect, mediation has become the first step in the appeal process. If the applicant or recipient is willing, the mediation
must be completed within 25 days of the submission of appeal request.
Q: That seems like a really tight time frame. Can you tell me more about how the process works?
A: The Network is responsible for dispersing cases among participating dispute settlement centers with the referrals go-ing
to the centers closest to the applicant or recipient petitioners. The Center actually contacts the petitioner and de-termines
whether s/he is willing to participate in mediation. Generally, only the petitioner and a representative of
Value-Options or the State attend, but others such as caretakers or social workers may also participate, particularly
in instances where the petitioner needs additional support. The center schedules the mediation which may be held in
person if the petitioner is willing and able to attend, or by telephone. Most sessions take about an hour. A mediator
will, upon request, call a short recess to permit those attending to obtain legal or other advice usually by telephone.
We advise applicants and recipients beforehand to ask anyone they may want to consult with, to be on standby dur-ing
the mediation. (Continued on Page 5)
Page 5
Q: Is mediation available statewide?
A: Currently 17 of the 23 dispute settlement centers operating in North Carolina are working to make Medicaid appeals
mediation available statewide. (The pie chart below illustrates how the case load is distributed among the various
centers.)
Q: Terri, what kinds of situations have you seen in mediation?
A: We have seen appeals involving denials or reductions in medical services across a range of issues. We have medi-ated
denials of requests for medication and medical procedures. Many of the cases involved requests for community
support or other services for emotionally disabled individuals. My center has also had a fair amount of cases in-volving
minors and requests for orthodontia treatment or help with learning disabilities or physical disabilities. Re-quests
for services such as private duty nursing or an attendant to accompany a disabled child to school have also
been mediated. Recently, I mediated a case involving a family with a handicapped child. As the child grew, he
could no longer turn his wheel chair around in their only bathroom. The only possible way to enlarge the bathroom
to insure space for the wheelchair was to push out the back wall. The request had been denied because it resulted in
increasing the square footage of the home. These types of discussions are well suited for mediation.
Q: Jody Minor, tells me that between October 1, 2008, when the Network began to disperse cases and March 31, 2009,
that 2,425 Medicaid appeals were referred for mediation. (Mr. Minor provided the graph below, illustrating total
volume referred to all Centers from October, 2008, through March, 2009.) That’s a tremendous number. How
many referrals has your center received and has mediation been helpful in resolving them?
A: From October 1, 2008, though March 10, 2009, we had 82 referrals. Mediation has been very successful. Not only
are applicants or recipients accepting the offer to mediate nearly all of the time, but between 80-90 percent of the
referrals are settling in mediation.
Q: I am amazed that you can get both such high participation and such high settlement rates when you are mediating
cases involving medical and mental health treatment issues.
A. Unless a Legal Aid lawyer is involved, the reality is that these folks don’t usually have funds to hire an attorney, so
they can either come to an informal process like mediation or they can go to OAH and represent themselves in a
formal legal proceeding. Most folks are intimidated by the latter. As for the settlement rate, sometimes applicants or
recipients struggle to explain their needs and they understand how hard it can be to communicate with a big
(Continued on Page 10)
Page 6
Commission Adopts New Advisory Opinion
The Dispute Resolution Commission has adopted new Advisory Opinion 08-15, pursuant to its Advisory Opinion Policy.
The Commission encourages all mediators who are facing an ethical dilemma or who have a question about rule inter-pretation
to contact the Commission’s office and request guidance. If time is of the essence, a mediator may seek imme-diate
assistance from Commission staff over the telephone or by e-mail. The call and advice given will be noted in the
Commission’s Call Log. Mediators may also request a written opinion from the Commission. Written Advisory Opin-ions
carry the full weight of the Commission. To view the Advisory Opinion Policy, go to www.ncdrc.org and click on
“Mediator Ethics” and then click on “Advisory Opinion Policy”. Previously adopted Opinions may also be viewed on
the web. The full text of the new Opinion follows:
08-15
Advisory Opinion of the
NC Dispute Resolution Commission
(Adopted and Issued by the Commission on November 7, 2008)
N.C. Gen. Stat. §7A-38.2(b) provides, “[t]he administration of mediator certification, regulation of mediator conduct,
and certification shall be conducted through the Dispute Resolution Commission, established under the Judicial Depart-ment.”
On August 28, 1998, the Commission adopted an Advisory Opinions Policy encouraging mediators to seek guid-ance
on dilemmas that arise in the context of their mediation practice. In adopting the Policy and issuing opinions, the
Commission seeks to educate mediators and to protect the public.
Concern Raised
The heirs of an estate had been unable to reach an agreement as to who should serve as the estate’s administrator/
fiduciary. The Clerk of Superior Court in the county where the matter was pending referred the dispute to mediation.
During the mediation, the heirs, all of whom were represented by counsel, reached an agreement which named their me-diator
as the administrator. When the agreement was later presented to the Clerk for approval, one of the heirs objected
to the appointment arguing, in effect, that she thought it was a conflict of interest for the mediator to agree to serve as the
administrator. That individual told the Clerk that she had expressed concerns about the arrangement during the media-tion,
but that her concerns had been brushed aside and she had not continued to object. Inquiry was made to the Com-mission
as to where it was appropriate for the mediator to agree to serve as the administrator/fiduciary.
Advisory Opinion
Standard VII addresses conflicts of interest. That Standard provides that, “A mediator shall not allow any personal inter-est
to interfere with the primary obligation to impartially serve the parties to the dispute”. Subsection E. of that Standard
also provides that, “A mediator shall not use information obtained during a mediation for personal gain or advantage”.
In agreeing to serve as the administrator/fiduciary, the mediator may have had a pure motive and felt that he was going
the extra mile to help these heirs settle their dispute. Nevertheless, in accepting the appointment, he failed to give due
regard to the conflict between the parties interests and the fact that he stood to gain personally and financially from his
appointment as administrator.
Significant fees are often associated with service as an administrator/fiduciary or guardian. A mediator who promotes
himself or herself as available to serve in that capacity creates the impression that he or she manipulated the mediation
(Continued on Page 7)
Page 7
process or the parties with the ultimate goal of furthering his/her own interests at the expense of those of the parties.
A mediator who accepts such an appointment at the offer or even insistence of the parties creates the same perception.
In particular, that perception is created where, as reportedly here, the mediator allowed his name to be set forth in the
agreement even after one of the heirs objected to the mediator’s service as administrator. Such perceptions serve to dis-credit
the mediator, the mediation process, the Clerk Mediation Program and, ultimately, the Commission and courts.
A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept an appoint-ment
as a fiduciary that flows from the mediation process. A mediator who accepts such an appointment creates the per-ception
that he or she manipulated the mediation process and the parties to his or her own advantage in obtaining the
appointment and, thus, compromised his/her neutrality in the process.
A mediator should remain focused exclusively on his or her role as mediator and should not solicit or accept an appoint-ment
as a fiduciary that flows from the mediation process. A mediator who accepts such an appointment creates the per-ception
that he or she manipulated the mediation process and the parties to his or her own advantage in obtaining the
appointment and, thus, compromised his/her neutrality in the process.
* * * * * * *
Foreclosure Mediation -- A Timely Idea
In the wake of lost jobs, rising interest rates, and falling real estate values, many states have
seen foreclosure filings soar. Many courts have been overwhelmed with such filings. Our
neighbor to the South, Florida, has been especially hard hit. Judge Hugh Starnes, a retired Florida judge, has been called
back into service to man Ft. Myers special foreclosure court. A CNN reporter who sat in on “rocket docket”, as Judge
Starnes’ court is known locally, reported that the foreclosure process takes only seconds and sometimes the court hears
up to 1,000 cases a day. Judge Starnes told CNN that, “It is a legal, procedural response to an overwhelming number of
filings that unfortunately is necessary.” Judge Starnes, who used to hear family cases, characterized his current job as an
“unhappy one”, where there is not much opportunity for problem solving.
Judge Starnes and Lee County, Florida, are not alone. Other Florida circuits are looking for ways to address their own
rising tide of foreclosure cases. The Florida Bar News reports that 423,700 foreclosures in Florida have been projected
for 2009 and that 1.4 million are projected over the next four years. Not only are these foreclosures resulting in evic-tions
and ruined credit scores, they leave neighborhoods coping with overgrown lawns, vandalism, and ever greater de-pressed
values in a housing market that has already fallen fifty percent in some areas of the State. One reason Florida
has been so hard hit is that many of the homes in foreclosure were owned by speculators or were bought as vacation
homes. As Judge Starnes notes, such homes encompass about sixty percent of his caseload and the owners usually don’t
even bother to appear for the hearing. That fact explains why these cases often take only seconds to process. (A video
of the rocket docket in action is available on CNN.)
(Continued on Page 12)
Note from the Executive Director: Advisory Opinion 08-15 addresses a situation where a mediator permitted himself
to be appointed an Administrator in an estate matter involving siblings arguing over who should be appointed the Ad-ministrator.
The Commission has also learned of a situation where a mediator of a custody dispute, which was mediated
privately, agreed to also serve as the Parent Coordinator for the couple and their children. This is also a paid position
and a copy of the Opinion was provided to this mediator. In both instances, the mediator’s conduct invites the percep-tion
that he or she manipulated the process and the parties to his/her own financial advantage. Though, the Opinion
does not address it, such conduct also raises potential confidentiality concerns when a mediator shifts between roles.
Confidentially concerns may be especially problematic in the Parent Coordinator instance.
Page 8
SUPERIOR COURT TRAINING
Beason & Ellis Conflict Resolution, LLC: 40-hour Superior Court Mediator Training, May 13-17, in Char-lotte
and July 29 - August 2, in Chapel Hill. For more information or to register, call (919) 419-9979 or (866)
517-0145 or visit their web site: www.beasonellis.com.
Carolina Dispute Settlement Services: 40-hour Superior Court Mediator Training, July 20 - 24 in Raleigh. For
more information or to register, contact Dawn Bryant at (919) 755-4646, Ext. 23. Web site: www.notrials.com.
Mediation, Inc: 40-hour superior court mediator training course, April 22-26, in Raleigh and August 18-22, in
Asheville. For more information or to register, contact Beth Adkins at (919) 636-5697 or (888) 842-6157 or
visit their web site: www.mediationincnc.com.
FAMILY FINANCIAL TRAINING
Atlanta Divorce Mediators, Inc: 40-hour Family Mediation Training, April 30-May 4, in Atlanta, GA; June 22
- 26, in Atlanta, GA; August 27 - 31, in Atlanta, GA. For more information, contact Melissa C. Heard at (770)
778-7618. Web site: www.mediationtraining.net.
Carolina Dispute Settlement Services: 40-hour Family Mediation Training. See contact information above.
Mediation, Inc: 40-hour Family Mediation Training, September 2 - 6 in Chapel Hill. See above for contact
information.
SUPPLEMENTAL MSC/FFS
16-HOUR TRAINING
Beason and Ellis Conflict Resolution , LLC: Superior Court Supplemental Training. For training dates and
additional information, call (919) 419-9979 or visit www.beasonellis.com.
Carolina Dispute Settlement Services: Superior Court and Family Financial Supplemental Training. Family
Financial Supplemental Training is scheduled for June 10 - 11 in Raleigh. For training dates and additional in-formation,
or to register, contact Dawn Bryant at (919) 755-4646, Ext.23. Or visit: www.notrials.com.
Mediation, Inc: Superior Court and Family Financial Supplemental Training. For additional information or to
register, call (888) 842-6157 or (919) 636-5697 or visit: www.mediationincnc.com.
Upcoming Mediator
Certification Training
Page 9
New to the Commission’s Web-Site
The Commission asks all mediators to complete three hours of Continuing
Mediator Education (CME) annually. To help mediators comply, the Com-mission
has posted a list of books on mediation at
www.ncdrc.org. Click on “Continuing Education for
Mediators” then click on “Suggested
Readings”. The books listed are favorites of
Commission Members.
6-HOUR FFS/MSC COURSE
(Covers North Carolina legal terminology, court structure, and civil procedure)
Professor Mark W. Morris: 6-hour course, August 29, 2009, NCCU School of Law. To pre-register online,
go to www.nccourts.homestead.com.
The ADR Center of Wilimington: 6-hour course. For more information or to register, contact John J. Murphy
at (910) 362-8000 or e-mail at johnm@theadrcenter.org. Web site: www.theadrcenter.org.
Judge H. William Constangy (Charlotte): For more information, contact Judge Constangy at (704) 807-8164.
CLERK TRAINING
The ADR Center: Clerk Training Course, Wilmington. For additional information contact John J. Murphy at
(910) 362-8000 or visit: www.theadrcenter.org.
Mediation, Inc: The Clerk Training Course available on DVD. Contact Beth Adkins for information on renting
the DVD. See above for contact information.
CME AND ADVANCED TRAINING OPPORTUNITIES
Atlanta Divorce Mediators, Inc.: is presenting Advanced Divorce Practicum Training on July 24-25 and De-cember
4-5, in Atlanta, GA. For additional information, call (770) 778-7618 or visit
www.mediationtraining.net.
Mediation, Inc: is presenting Advanced Negotiation Crash Course on June 24 in Asheville. See above for addi-tional
information.
North Carolina Bar Association: is presenting the following programs: “Annual Estate Planning and Fiduciary
Law Program” on July 16-19 at Kiawah Island, SC; “Changes: A Labor and Employment Law Update” on June
26-27 in Asheville; “The Martial Deduction: Planning, Funding and Distributing” on May 1-2 in Greensboro;
“Men Have Issues Too (2009 Family Law Section Annual Meeting); May 1-3 in Wrightsville Beach; and
“Powerful Communication Skills: Winning Strategies For Lawyers” on April 30 - May 1 in Cary.
Page 10
(Mediation Used in Medicaid Disputes continued from Page 5)
bureaucracy. Mediation means that, for a time, they have the undivided attention of a representative of that bureauc-racy
and it is often the first time that they have really heard each other. Many times, the denial or reduction is a re-sult
of a misunderstanding or the lack of documented need.
Often times, applicants or recipients will accept a denial or reduction as long as they understand the reason for the
decision. Mediation provides an opportunity for State personnel or Value Options staff to explain their reasoning. It
is my understanding that only a fraction of the cases where the State refused to alter its decision to deny or reduce
services at mediation, are being heard by OAH. Once they understand the decision, applicants and recipients typi-cally
don’t pursue it further. In fact, my measure of success for many of these mediations is not whether the service
is provided, but whether the applicant or recipient understands why it was denied.
Q: Who is conducting these mediations and are they provided with any training?
A: The mediations are conducted by center staff or volunteers. In my particular center, I did the mediations initially
until I had a good feel for how they worked and could share that information with my staff and volunteers. Our staff
and volunteers were already trained as mediators and had actual mediation experience. They were also provided
with some specialized training by DHHS. It was not mediation training, but rather information on case screening,
Medicaid terminology, information about the kinds of situations that might be referred, that sort of material.
Q: What about funding for this effort?
A: Centers are paid a flat rate. We receive $100.00 per case for cases that do not make it to mediation. That would usu-ally
be a situation where we can’t find the applicant or recipient or he or she does not want to mediate. We receive
$200.00 per case for cases where we provide either conciliation or mediation services.
Q: Are these mediations confidential? What happens with the agreement if there is one?
A: The process is generally confidential, though we observe the exceptions to confidentiality set forth in the Supreme
Court’s Standards of Professional Conduct for Mediators, i.e., threats of child or elder abuse, threats to do harm to
persons or property. If mediation is successful, the mediator reports that fact to OAH and they confirm it with Value
Options or the State. Then, the matter is dismissed. If mediation is not held because we cannot locate the applicant
or recipient or he or she declines mediation, or if mediation is not successful, the mediator informs the Hearing Divi-sion
at OAH and the case proceeds to a hearing.
Q. Terri, has been there a lot of interest in what you are doing?
A: Absolutely, to my knowledge this is the first time these kinds of cases have ever been mediated. Other states have
expressed a great deal of interest in what is happening here.
Q: Is there anything else that you would like the Intermediary’s readers to know about this new effort?
A: I would like them to know that I have found this work to be very gratifying. We are serving a fragile population that
often struggles to be heard by the government agencies on which they depend. They are used to being shuttled from
one telephone line to the next or from one person to another. They are so grateful for a process that they feel gives
them a chance to be heard and to have their concerns acknowledged. That has been almost universally true in my
experience, even when the denial or reductions remain in tact.
Note: To learn more about Terri Masiello, see the article on New Commission Members on page 14.
Page 11
Commission Revamps Renewal Process
Once, again, it is time for the annual spring renewal of mediator certifications. In an effort, to make it easier for media-tors
to renew, the Commission has revamped the mechanics of its on line renewal process. There will be a number of
changes this year:
1) Mediators will go directly to www.ncdrc.org to renew. In early June, mediators
will receive a packet from the Commission. Included with that packet will be bright
yellow sheet of paper assigning the recipient a temporary password. With that pass-word
in hand, mediators will go directly to the Commission’s web site at
www.ncdrc.org and click on the Commission’s royal blue logo. From that portal,
mediators will have an opportunity to enter their email address and temporary pass-word
in order to access and complete a renewal application.
2) Mediators will select a permanent password. Once a mediator’s temporary password has
been accepted, he or she will be asked to select a permanent password. Mediators may use that
password during subsequent renewal periods or at any time during the year to go to the Commis-sion’s
website to access and update their contact, availability or biographical information.
3) Invoices will not be mailed separately. Once the mediator has completed and submitted his or
her renewal application, the program will print an invoice for the annual renewal fee and the me-diator
will mail the invoice and his or her check to the Commission’s office.
The Commission has been grateful for the patience of mediators with on-line renewal which, has admittedly, not worked
well to date. This new design is, in fact, the very process that the Commission requested four year’s ago, but was not
permitted to implement. Unfortunately, the design for the process that was instead imposed on the Commission was
plagued by technological problems, proved unfathomable to many mediators, and resulted in extra work for Commission
staff. The Commission sincerely hopes that this more streamlined approach will prove more workable.
Mediators will also note an additional change in the ethics’ portion of the renewal application. Mediators will be asked
not only to disclose convictions, disciplinary matters, and judicial sanctions; but also civil judgments, tax liens and
bankruptcies. While the Commission understands that some may view requiring these additional disclosures as inva-sive,
experience to date has convinced the Commission of the utility of having this information. For example, it may be
relevant for the Commission to know that an applicant for family financial mediator certification has repeatedly failed
over a period of years to pay his or her child support. The Commission wishes to assure all applicants that it is unlikely
that a single bankruptcy, tax lien or civil judgment would derail an initial or renewal applica-tion.
The Commission is looking more for patterns or multiple situations that raise serious con-cerns.
The Commission will keep all such information highly confidential.
As always, the Commission deeply appreciates the contributions that mediators made this year
to work of our courts and hopes that all will continue to serve in the coming year.
Are you a blogger? Do you like to read blogs? The Commission
has posted a list of Mediation Blogs on it’s web site at
www.ncdrc.org, including one by DRC certified mediator, Roy
Baroff. To see the list, click on “Continuing Education for Media-tors”
then click on “Mediation Blogs”.
Click Here
Page 12
(Foreclosure Mediation -- A Timely Idea Continued from Page 7)
Florida’s twenty judicial circuits have worked hard to keep up with the situation, but many are concerned about the
patchwork approach that exists throughout the State’s courts for handling foreclosures, especially as it affects owners
who, in fact, occupy their homes. The March 15, 2009, edition of the Florida Bar News reports that a group of private
lawyers and legal aid groups have now petitioned Florida’s Supreme Court to invoke it’s emergency rule-making author-ity
to mandate that all new and pending mortgage foreclosure actions involving owner occupied residences, be referred
to mediation. The petitioners argue that too often homes are lost because owners, who are behind in their payments, are
never able to reach anyone in the lender’s office who is willing to talk to them and who has authority to modify their
payment terms. Many times, the petitioners report, the owner has no opportunity to speak to anyone until the summary
judgment hearing or even the foreclosure sale itself. In either instance, it is too late by then to turn things around. The
petitioners have not only asked the Court to mandate mediation of foreclosure actions in Florida, but to also require the
home owner and a representative of the lender with authority to modify terms, to appear in person for the meeting. They
are also asking the Court to require the lender to cover the cost of the mediation. The petitioners argue that the uniform
statewide requirements they propose will allow many, who might otherwise be evicted, to remain in their homes and will
also generally protect property values across Florida.
Some Florida circuits have already begun to experiment with mediation in foreclosure actions. The 1st and 19th judicial
circuits have both set up a new system for handling foreclosures that includes special mediation courts. The special
courts are being run by the Collins Center for Public Policy. (The Collins Center, established in 1988, is an independent
entity charged with finding impartial solutions to controversial problems. It exceeds the bounds of a traditional think
tank in that it seeks opportunities and takes action on projects that impact the citizens of Florida.) Rob Petry of the
Collins Center believes mediation holds out the promise of helping homeowners, lenders and local communities. He
explains that the mediation does not happen in a vacuum. Homeowners must first undergo credit counseling to deter-mine
how large a monthly payment they can realistically afford. Lenders, he adds, must make available a representative
who has the power to modify the mortgage. If such a person fails to appear, the judge, he says, has the power to dismiss
the case.
Florida is not the only state to explore using mediation as a tool to address foreclosure filings. New Jersey operates a
foreclosure mediation program. For no charge, a New Jersey homeowner facing foreclosure has access to housing coun-selors
and lawyers who try to help the homeowner devise a modified payment plan that may involve reduced penalties
and/or lower interest rates. If the lender rejects the modified plan, the court appoints a mediator who brings the bor-rower
and lender together face-to-face to discuss options for re-payment. California, Connecticut, Iowa, Minnesota, Ohio
and others have also inserted mediation components into legislation or programs they have adopted to address rising
foreclosure rates. The Supreme Court of Ohio has developed a comprehensive web site on its Foreclosure Mediation
Program which explains, step-by-step, how the program operates. Legislation, rules and forms used to administer the
program are posted on the web site. The site also includes a consumers’ guide to foreclosure mediation which also of-fers
suggestions to mediators on how they may become involved.
Interest in developing ways to help homeowners remain in their homes has increased even more since President
Obama’s announcement of his 75 billion dollar plan to stem the rising tide of foreclosure and stabilize the housing mar-ket.
Additional legislation and programs are expected at the state level in the wake of the federal legislation.
While interest in mediation as a tool remains high, there are some skeptics. Some do not believe that there is enough
incentive for lenders to agree to modifications, vandalized homes and blighted neighborhoods notwithstanding. Dan
Skiles, President of First Peoples Bank in Port St. Lucie, Florida, insists that, “You get the third party in there; it does
nothing but run up fees and complicates matters.” Others simply think that the courts are overreaching in using the me-diation
process to modify contracts and extract concessions from lenders.
While North Carolina has not looked to mediation to help resolve such disputes, North Carolina lawmakers and former
Governor Easley set up a program which zeroed in on subprime mortgages. Under the program, which commenced No-vember
1, 2008, firms who service mortgages are required to notify homeowners with troubled loans at least 45 days
prior to filing a foreclosure proceeding against them. At that point, the State Banking Commissioner steps in and sends a
letter to the homeowner encouraging him or her to call a toll-free number to receive advice from a housing counselor. ♦
Page 13
Commission Has New Chair, 5 New Members
And 1 Member Returns!
At the Dispute Resolution Commission’s November Meeting, Judge W.
David Lee, Senior Resident Superior Court Judge in District 20, was sworn
in as the Commission’s chair. The oath of office was administered by out-going
chair, N.C. Court of Appeals Judge Sanford L. Steelman, Jr. Judge
Lee was appointed Chair by Chief Justice Sarah E. Parker. He has already
served one full term on the Commission, and will serve as Chair through
September of 2009. Judge Steelman has agreed to remain active on the
Commission as a liaison from the Court of Appeal’s Mediation Program.
Judge Lee becomes the Commission’s fourth chair following: Judge Ralph
A. Walker, J. Anderson “Andy” Little, and Judge Steelman.
Judge Lee, in turn, administered the oath of office to new Commission
members, Jacqueline R. Clare, attorney and certified mediator; Judge Bar-bara
Jackson of the N.C. Court of Appeals; J. Anderson Little, attorney, cer-tified
mediator and trainer; Terri Masiello, Executive Director of the Pied-mont
Mediation Center; and attorney N. Victor Farah. Each of these new
members will serve a three year term. Clerk of Superior Court Martha H.
Curran, of District 26, was re-appointed to the Commission by the Chief
Justice and was also sworn in at the November Meeting.
The Dispute Resolution Commission is a sixteen-member body comprised
of judges, mediators, attorneys who are not mediators, and interested mem-bers
of the public. The Chief Justice holds the bulk of appointments, but
others are made by the Governor, Speaker of the House, President Pro Tem-pore
of the Senate, and the President of the Bar.
In addition to Judge Steelman, Ellen Gelbin has joined the Commission as
liaison from the NCBA’s Dispute Resolution Section.
Members Complete Terms
At its November meeting, the Com-mission
said goodbye to members
who have completed their terms:
Julius E. Banzet, III; Sherman Lee
Criner; and Diann Seigle. Both
outgoing Chair, Judge Sanford
Steelman, Jr., and in coming Chair
Judge W. David Lee, praised the
contributions of the departing
members and thanked them for
their hard work. In particular, Mr.
Criner was praised for his service
as the Chair of the Commission’s
Mediator Certification and Training
Standards Committee and Ms. Sei-gle
for her work in envisioning and
developing the new District Crimi-nal
Court Mediation Program.
In addition to the loss of these
members, Court of Appeals Judge
Judge Sanford L. Steelman, Jr., of
Union County, completed two
terms as a member of the Commis-sion
and one as its Chair. Judge
Lee, thanked Judge Steelman for
his service and, most especially, for
his leadership. He also noted that
he was pleased to announce that
Judge Steelman had agreed to re-main
active on the Commission in a
new role, serving as liaison from
the Court of Appeal’s Mediation
Program. Judge Lee thanked Judge
Steelman for his continuing com-mitment
to the Commission and
said that he would be grateful for
Judge Steelman’s guidance as he
transitioned in his new role as
Chair. Judge Steelman served six
years on the Commission, two of
them as its Chair.
Judge Steelman, Mr. Banzet, Mr.
Criner and Ms. Seigle, received
plaques expressing the Commis-sion’s
gratitude for their service.
The Commission Congratulates
Two New Mediation Trainers
The Commission has certified two new mediator training
programs affiliated with two North Carolina Universities:
♦ Ellen Gelbin will teach a course on Superior Court Mediation at
Wake Forest University School of Law and
♦ Roy Baroff will offer a course on Superior Court Mediation in
UNC Greensboro’s Master’s Degree in Conflict Resolution Program.
These courses are designed for
students and are not open to the
general public.
There were new faces at the Com-mission’s
November 7th meeting in
Blowing Rock! The Dispute Reso-lution
Commission warmly wel-comes
its new members and looks
forward to their contributions:
J a c q u e l i n e
“Jackie” R. Clare
is an attorney and
certified MSC
Mediator. She
began her legal
career at Womble,
Carlye, Sandridge
and Rice where she focused on
complex commercial litigation and
bankruptcy. She became a certi-fied
mediator in 1993 and has
since devoted her career to being a
full time mediator. She focuses
her mediation practice in the areas
of business, bankruptcy, workers’
compensation, personal injury and
medical malpractice. Ms. Clare is
the past Chair of the NCBA’s Dis-pute
Resolution Section and editor
of Alternative Dispute Resolution
in North Carolina: A New Civil
Procedure, a history of dispute
resolution in North Carolina.
Judge Lee has appointed Ms. Clare
to the Commission’s Standards,
Disciplinary and Advisory Opin-ions
Committee.
The Honorable
Judge Barbara
Jackson currently
sits on the N.C.
Court of Appeals.
She received her
J.D. from the Uni-versity
of North
Carolina at Chapel Hill in 1990.
Prior to assuming her seat on the
Court of Appeals, Judge Jackson:
served as General Council to the
N.C. Department of Labor; was an
Associate with Holt York McDar-ris;
served as Deputy General
Council to the N.C. Governor’s
Advocacy Council for Persons
with Disabilities; and as Associate
General Counsel to Governor
James G. Martin. Judge Jackson is
the recipient of “The Order of the
Long Leaf Pine” and is a Fellow
with the NC Institute of Political
Leadership. She has been very ac-tive
with the North Carolina Bar
Association, the Wake County Bar
Association (Board of Directors),
and the North Carolina Association
of Women Attorneys. Judge Lee
has appointed Judge Jackson to
serve on the Commission’s Execu-tive
Committee.
J. Anderson “Andy”
Little, returns to the
Dispute Resolution
Commission after
having served previ-ously
as both a mem-ber
and as Chair. Mr.
Little is a certified mediator, a me-diation
trainer and the author of
Making Money Talk: How to Medi-ate
Insured Claims and Other
Monetary Disputes. Mr. Little was
an early proponent of mediation in
North Carolina and was instrumen-tal
in helping to establish the supe-rior
court’s Mediated Settlement
Conference Program in the early
1990’s. He was also the first Chair
of the NCBA’s Dispute Resolution
Section. Mr. Little received his
law degree from the University of
North Carolina at Chapel Hill.
Judge Lee has asked Mr. Little to
chair the Commission’s Program
Oversight Committee.
Terri Masiello is
the Executive
Director of the
Piedmont Media-tion
Center in
Statesville. Ms.
Masiello holds a
B.S. in Social Work and a Business
Management Certificate from
Hampton Roads.
Ms. Masiello was one of the first to
be certified as a District Criminal
Court Mediator in North Carolina
and served as a member of the Com-mission’s
Ad Hoc Committee which
drafted the rules for the new District
Criminal Court Mediation Program.
Ms. Masiello also trainers mediators.
She is also certified as a Mediated
Settlement Conference and Clerk
Program Mediator. Judge Lee has
appointed Ms. Masiello to the Com-mission’s
Standards, Disciplinary
and Advisory Opinions Committee.
N. Victor Farah is a
Raleigh attorney with
the Jernigan Law
Firm. He primarily
practices workers’
compensation law.
Mr. Farah was admit-ted
to the North Caro-lina
State Bar in 1987 and is a Board
Certified Specialist in Workers’
Compensation Law. He has served
on the Board of Governors for the
N.C. Academy of Trial Lawyers and
as Chair of the NCBA’s Workers’
Compensation Section. He also vol-unteers
as a peer counselor for the
NCBA’s PALS Committee. Mr.
Farah is a native of Detroit and a
graduate of Wayne State University
Law School. Judge Lee has ap-pointed
Mr. Farah to serve on the
Commission’s Standards, Discipli-nary
and Advisory Opinions Com-mittee.
NEW FACES AT THE COMMISSION
Page 14
Page 15
The Commission Congratulates
Pro Bono Panel Volunteers
Over the past several months, the North Carolina Bar Associa-tion’s
Dispute Resolution Section has been soliciting volunteer
mediators to serve on pro bono panels. Members of the panels have agreed to conduct mediations involv-ing
Legal Aid clients for free or at a reduced rate. The panel is part of NCBA Past-President Janet Ward
Black’s 4-All initiative aimed at securing assistance for those who cannot afford the high cost of litigation
and for whom justice is out of reach.
The names of those mediators who have volunteered to date to serve on the panels are printed below. The
members of the Commission are gratified that so many mediators have volunteered. The Commission sa-lutes
these individuals and congratulates them on their willingness to serve their fellow citizens. In
these tough economic times, an initiative like this takes on even greater importance. It is not too late to be-come
involved. If you are willing to serve, please contact Rick Igou at (919)450-8447 or
Igou@earthlink.net. The Commission encourages your participation in this worthy cause.
Anne Micheaux Akwari
Ann Anderson
LeNoir Ayscue
Barney Barnhardt
Bob Beason
Leonard "Len" Benade
Dorothy C. Bernholz
Donald H. Beskind
William A. Blancato
Richard T. Boyette
Ken Broun
Kenneth P. Carlson, Jr.
Peter T. Chenery
Jacqueline R. Clare
Denise Smith Cline
Howard M. Cohen
Alden B. Cole
R. Sarah Compton
Robert C. Cone
Jeannette Griffith Congdon
William L. "Bill" Daisy
Benjamin Davis
Dawn Dowd
George Doyle
Ashley M. Edwards
René Stemple Ellis
Ed Farthing
Elliot Fus
Charles H. Gardner
Ellen R. Gelbin
Eric Ginsburg
Christopher T. Graebe
J. Brandon Graham
William G. “Will” Granger
A. Holt Gwyn
Jeannie Hall
Jane Harper
Frances W. Henderson
Daniel B. Hill
Bob Holbert
Harriet S. Hopkins
Richard J. “Rick” Igou
James E. Ingram
Deborah M. Jackson
Nancy Byerly Jones
David Kelsey
Eugene Kennedy
Bob Kerner
Harold Koger
Michele A. Ledo
M.J. Longval
John Mabe
Hector MacDonald
Robert “Bob” Martin
Terri Masiello
William M. Mauldin
Marilyn Maynard
Tom McCarty
Ralph Meekins
Kate Mewhinney
Martha New Milam
Jeffrey L. Miller
William J. “Billy Joe” Morgan
Melzer A. “Pat” Morgan, Jr.
Lisa B. Morris, RN, JD
Dennis Myers
Nancy Norelli
G. Jona “Joe” Poe, Jr.
Jim Ragan
Charles E. Rawlings, MD
Mark F. Richardson
A. Douglas Robinson
Theresa Joan Rosenberg
Steven A. Savia
Cameron Simmons
Jim Smith
Adam Stein
Hugh Stevens
Michael A. Swann
Gayle Goldsmith Tuch
Eugene J. Vasile
Reagan H. Weaver
Barbara B. Weyher
Albert Jerome Williams, Jr.
Henry Hall Wilson, III
William F. Wolcott, III
William A. Woodruff